Director of Public Prosecutions v Stakic

[2024] VCC 1421

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00413

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID STAKIC

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2024
DATE OF SENTENCE:	10 September 2024
CASE MAY BE CITED AS:	DPP v Stakic
MEDIUM NEUTRAL CITATION:	[2024] VCC 1421

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Obtaining property by deception.

Legislation Cited: s81(1) Crimes Act 1958 (Vic); s5(1) - (2) Sentencing Act 1991(Vic)

Cases Cited: DPP v Tullipan [2021] VSCA 1910; Berichon & Ors v The Queen [2015] VSCA 319; DPP v Dalgliesh (2017) 91 ALJR 1063;

Sentence: two and a half years' imprisonment with a non-parole period of 20 months.

6AAA: three years and four months imprisonment with a non-parole period of two years and three months. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Borg	Office of Public Prosecutions
For the Accused	Mr J. Valos	Valos Black & Associates

HIS HONOUR:

1Mr Stakic, if you would be good enough to just remain seated.  There are number of matters that I have to go over and when I finish, I will ask you to stand when I pronounce sentence.

2OFFENDER:  Okay, thank you.

3HIS HONOUR:  In this matter of Mr David Stakic, the plea was heard before this Court on 5 August 2024.  Ms Borg appeared for the Director and
Mr Thomson appeared on behalf of Mr Stakic, today, Mr Valos appears. 
Mr Stakic was born in August 1950. He turned 74 this year, and the offending took place when he was aged between 63 and 67. He's now an aged pensioner and lives in Radar Street, St Kilda. The plea was made to Indictment No.L12187923.1. The charge under that indictment was one charge of obtain property by deception, a charge laid under s81(1) of the Crimes Act for which the maximum penalty prescribed is 10 years imprisonment.

4The property obtained was the sum of $2,949,399 made up of some
276 separate payments made to either Mr Stakic, his co-accused or his sister over the period.  Those occasions are set out in Schedule A which was attached to the opening.  This charge is a course of conduct charge to which the provisions of the Criminal Procedure Act apply, in particular clause 4A(1) of Schedule 1 of the Criminal Procedure Act. Importantly for sentencing, sub-s(6) details this offence, albeit involving the number of separate payments, as a single offence charge.

5Insofar as the sentencing of a course of conduct charge, it was noted by the Court of Appeal in DPP v Tullipan [2021] VSCA 1910 that the sentence of such a course of conduct charge is a task for a Court of particular difficulty, see [4]. What one is required to do in this case is arrive at a single sentence 'which reflects the totality of the offending, while operating within the maximum penalty applicable to a single offence', see [5].

6The primary victims of this deception were Mr and Mrs Nagorcka and I find on assessing the opening a further primary victim their son, Brian, see Exhibit A, [62] to [67]. I find in addition a secondary victim James Lenehan, pursuant to the circumstances set out at [76] to [87].

7The co-accused, Mr Lapatis, was sentenced on this charge to four years' gaol on 7 September 2023 by my brother, Judge Lauritsen.  I understand that matter is being appealed. 

8Unlike Mr Stakic, Mr Lapatis is a confirmed thief and fraud, who had at the time of his sentence a history of some 76 priors, had been imprisoned on three prior occasions with the longest sentence being one of 14 months.

9The offending in this case comes about in extremely bizarre circumstances.  You, Mr Stakic, lived in the motel conducted by the victims.  You and Mr Lapatis told those victims that you needed money to fight a case in the High Court.  As part of that story, you told them that or any publicity of that case had been suppressed and at the end of the case both of you were expecting to receive large amounts of money.  As I said, bizarrely, over the next five years, that is from 1 December 2013 to 10 January 2018, the victims provided you both with $2.9 million. 

10Apparently, those victims still have belief in you, albeit them being in Court on the last occasion to hear these proceedings.  They have not filed a victim impact statement.  Moneys were deposited into the bank account of yourself,
Mr Lapatis and your sister, Branka, and cash was received by Mr Lapatis.  Insofar as those deposits are from the victims, it is agreed that you personally received $203,718, which was apparently spent on living expenses, and that you transferred to Mr Lapatis the sum of $1,069,390 from the money deposited into your account. 

11There was a further amount of $709,844 which was deposited by the victims into your sister, Branka's, account and withdrawn in cash.  Despite the attempts of a forensic accountant, there is no tracing of that happened to that cash, nor are we aware apparently of where it went exactly. 

12Bizarrely, the victim’s belief in you and Mr Lapatis extended to them not only supplying you and Lapatis funds but supplementing their own resources by obtaining loans to give to you from their family, business associates and friends.  The Court was shown a second Schedule A which identifies these persons and the money that they provided to the Nagorckas.

13But for their son, Brian, who I have identified as a victim, Brian, having the discussions set out in [4] of the opening, and Mr Lenehan, having discussions set out in [77] of the opening, I find that none of the other persons who provided money qualify as victims as detailed in Exhibit A, even if one applies the broadest interpretation of the meaning of s3 of the Sentencing Act,  as detailed in Berichon & Ors v The Queen [2015] VSCA 319, at [19]-[20].

14As to criminal culpability, I note the submission of the DPP at [2]. The prosecution accepts that yours was the lesser role, insofar as culpability in regard to this crime, when comparing yourself and Mr Lapatis. However, it must be pointed out that it was you, Mr Stakic, who introduced Lapatis to the victims. Apart from my determination as to who were the actual victims of the crime, clearly Robin and Roslyn Nagorcka have suffered the ignominy not only of paying their own funds to you, but of having to account to their family and friends for such stupidity and not now apparently having the funds to repay such loans. For example, they borrowed approximately $1.08 million from Mr Nagorcka's brother, Terrence, and his wife. The only process of recovery as I understand the position that's taken place is Mr Lenehan has been able to recover the money that he gave to the Nagorckas by way of garnishee.

15As to the balance of funds, no-one seems to know where they went, albeit
Mr Thomson in submission put to the Court that they went 'on drugs' for Mr Lapatis.  How the victims, that is the three primary victims and the secondary victim, ever got to such a state of belief whereby they would deliver such a huge amount of money to Mr Stakic and Mr Lapatis is beyond belief.  How they maintained that belief is simply beyond my ken.  Even though the victims were clearly questioned on a number of occasions by the friends and associates, from whom they had obtained money, ultimately the phrase 'abject stupidity' is the only phrase I can ascribe to the victims' actions.

16I accept the prosecution submission that the culpability of Mr Stakic must be classified at a high level.  The prosecution submits that, in the totality of the circumstances of the case, immediate imprisonment is necessary to fulfil the appropriate sentencing and punishment principles.

17In the plea of Mr Thomson, what was remarkable and stood out is that there was no explanation offered on behalf of Mr Stakic for this crime.  Nor, I point out, was there any explanation in the record of interview conducted with Mr Stakic on 2 February 2019.  Indeed, Mr Thomson did not dispute the level of culpability in his submission, however put that apparently most of the money went to Mr Lapatis, see paragraph [17] of Exhibit 1, which matches the prosecution opening. 

18It was further said that initially Mr Stakic actually believed Mr Lapatis as to the High Court case and the circumstances that I have indicated surrounding that.  However, it is accepted that once alerted to the alleged suppressed High Court case being fraudulent, he continued to carry on with the obtaining of money from the victim in this matter, see [16] of the prosecution submission.

19I accept from the circumstances as I can understand them, that Mr Lapatis was the prime mover, although clearly as indicated at [20], Mr Stakic not only remained involved but became deeply involved by way of receiving the funds into his accounts and forwarding them on to Mr Lapatis. 

20By way of mitigation, I accept that the plea of guilty was made at the earliest time, being a matter which is utilitarian and of much assistance no doubt to the victims not having to publicly give evidence. 

21Mr Stakic comes before the Court with no priors or any sort, as I have already said, in quite stark comparison to his co-accused.

22Mr Stakic has also been subject to delay.  The indication of a plea was made at the time the indictment was issued.  However, given the failure to co-operate by the victims, who indeed had to be subject to compulsory examination as the investigation proceeded, and for what other reasons I am unaware, but the delay in this case is between four and five years.  Of course, as part of the investigation, because of the non-co-operation of the victims, interception of telephone calls had to be effected and further a forensic accountant was required.  None of those are Mr Stakic's fault, and it is necessary for me in sentencing Mr Stakic to take that delay into account by way of mitigation, this excessive delay as I see it.

23Insofar as his personal background, and I have already said he has no priors, his background shows a person who from an early age has worked hard and consistently. 

24Coming then to his health, Mr Thomson submits that Mr Stakic is in poor health.  His haematologist suggests that his blood issues are stable, see Exhibit 2, and he has a medication summary which does not in my view seem particularly unusual for a 73-year-old.  I consider the use of the word 'destitute' exaggerated in Mr Thomson's written submissions.  All of his medical issues seem readily treatable, as indicated.  I accept, however, that Verdins principle 5 is applicable, clearly given the totality of his medical conditions, a period of imprisonment will weigh more heavily on him than a person in good health. I note as well that in 2018, he had a heart attack which apparently was successfully treated by the insertion of stents.

25Mr Thomson ended his plea by asking the Court to impose a merciful sentence which I certainly intend to do, which is at all times the function of this Court.

26As to parity, I am of course required to consider parity as to the sentence handed out to Mr Lapatis, and the acceptance by the prosecution of Mr Lapatis playing the larger role.

27Mr Stakic is entitled to a just sentence upon the facts of this case as I have described them to be, see the DPP v Dalgliesh (2017) 91 ALJR 1063 and 1072, at [49]. I must also take into account the general requirements as to sentencing set out in s5(1) and (2) of the Sentencing Act of this State.

28Mr Stakic, if you could stand please. 

29You will be convicted of the crime of obtain property by deception and sentenced to two and a half years' imprisonment.  I order that you serve 20 months before being eligible for parole. 

30Pursuant to s6AAA, the Parliament requires me to indicate to you what the sentence would otherwise have been had you not pleaded guilty. This is a very difficult requirement for a Judge, not only in a normal case, but in a case such as this, which I have indicated has within it particular difficulties, being a course of conduct charge. Doing as best I can, I indicate that had you not pleaded guilty, the sentence I would have imposed upon you is three years and four months imprisonment with a non-parole period of two years and three months.  Against the sentence given to you, because you pleaded guilty, as one of the factors of the totality of factors that I have to take account of, a period of two and a half years' imprisonment with a minimum period to serve before you are eligible for parole of 20 months.  There is no pre-sentence detention to take into account. 

31MS BORG:  Your Honour ‑ ‑ ‑

32HIS HONOUR:  Can I indicate and provide hopefully, officers, we have got oncologist's report and we have got a medication summary.  We will arrange for those to be forwarded down to you so that they can be taken with Mr Stakic when he is taken to gaol.  All right?

33MS BORG:  Your Honour ‑ ‑ ‑

34HIS HONOUR:  I apologise, there was PSD when he was remanded.

35MS BORG:  Yes.

36HIS HONOUR:  How much was that?  Thirty ‑ ‑ ‑

37MS BORG:  Thirty-six days from 5 August.

38HIS HONOUR:  Thirty-six days, yes, I apologise.  The 36 days, Mr Stakic that you served when you were remanded will be taken into account as service of this sentence and I order that this declaration be recorded in the records of this Court.  Madam Associate, you will send those two documents downstairs, will you?

39ASSOCIATE:  Yes.

40HIS HONOUR:  Yes, officer, we will fax those downstairs.  Mr Valos or Ms Borg, any matters that I need to clarify?

41MR VALOS:  Not from my point, Your Honour.

42MS BORG:  No, Your Honour, no.

43HIS HONOUR:  Yes.  Good luck, Mr Stakic.  Yes, take the prisoner down.

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